2.Appellants
and one Raghu Manjhi, since deceased, along with four others were tried for
commission of offences under Sections 302/149, 307/149, 326/147/148/324 and 326
of the Indian Penal Code.

3.The
occurrence is said to have taken place on or about 31.10.1997 at about 2.00
p.m. at village Simultand within the jurisdiction of Chandan Kiyari (Bangaria
Assistant Thana) Police station in the district of Bokaro. First Information
Report (FIR) in relation to the said incidence is said to 2 have been recorded
at 3.45 p.m. in the complainant's (Suresh Kumar Das, P.W.10) house. In the FIR,
it was alleged by the complainant that when his father Nagender Nath Das
(deceased) and uncle Manpuran Das were sitting in front of their house after
taking meal, he heard a noise (hulla) whereupon he came out and saw Ravishwar
Manjhi, son of Berda Manjhi armed with `iron tenta', Jaleshwar Manjhi, son of
Veda Manjhi armed with `tangi', Kala Chand Manjhi, son of Berda Manjhi, Santu
Manjhi son of Balesar Manjhi armed with `bhala', Raghu Manjhi son of late Nakul
Manjhi armed with `bhala' and Umakant Rajak armed with `bhala' were assaulting
his father and uncle. He raised an alarm whereupon his other uncle Gour Das came
to rescue them. Jaleshwar Manjhi assaulted him also with a `tangi' as a result
of which he had received an injury on the palm of his right hand. Manpuran Das,
his uncle sustained injuries on his left armpit, on left knee joint and on the
left side of the head. Jaleshwar Manjhi caused tangi blow to his father.

When he wanted to
take his father with him then Ravishwar Manjhi pierced iron tenta (ballam) on
the right side of the back of his father and fled away. The motive for
commission of offence was stated to be objection by his father from creating
nuisance by the accused in front of their house. In the FIR, it was said to
have been recorded that the dead body of Nagender Nath Das was lying on the
road and Gour Das was lying in injured condition and Puran Das was lying in the
state of unconsciousness.

4.P.W.17-Shankar
Ram A.S.I., however, stated that on the said date he had received a phone call
informing him that a fight was going on at village Simultand. On the basis of
the said information, he recorded a `Sanha' and proceeded towards the place of
occurrence. However, admittedly, the said `Sanha' has not been produced. He,
furthermore, did not disclose as to from whom he received the information.

5.Indisputably,
another fard-beyan of Ravishwar Manjhi (accused No.5) was recorded by one Alok
Kumar, the Investigating Officer of the present case. He, however, had not been
examined by the prosecution.

6.Both
the FIRs were lodged at about 10.15 p.m. in the Chandankiyari Police Station.
Whereas FIR No. 104 was recorded against the appellants under Sections 147,
148, 149, 323, 324, 326, 307 and 302 of the Indian Penal Code, FIR No. 105 was
registered against the complainant party under Sections 147, 148, 149, 323,
324, 342, 448 and 354 of the Indian Penal Code.

7.The
case of the appellants as stated in the said FIR No. 105 lodged by the accused
No. 5 is that the deceased had trespassed into his house and tried to outrage
the modesty of Chinta Muni Majhian, wife of his younger brother and when she
raised alarm, appellants tried to save her. The deceased, however, was armed
with a tangi wherewith he assaulted on both 4 the appellants. He called all
his family members who also were armed with lethal weapons. Appellants were
assaulted causing injuries to them. The injuries sustained by the appellants
Ravishwar Manjhi and Jaleshwar Manjhi were examined by the SHO Chandankiyari
Police Station. He prepared injury reports of the appellants and sent them to
the hospital for further treatment.

8.The
injured, however, were sent to the private clinic of P.W. 11 - Dr. Ratan
Kejriwal. Admittedly, at Chandankiyari there is a government hospital. It is
also not in dispute that there is a hospital of Bharat Coking Coal Limited
(BCCL), a public sector undertaking at Amlabad in which one of the injured
witnesses was an employee.

They, however, chose
to go to village Chas which is at a distance of 22 kilometers from the place of
occurrence and were admitted in the clinic of P.W.11.

Post-mortem was
conducted on 1.11.1997 at about 11.30 a.m. in the Sadar Hospital, Bokaro by Dr.
Avinash Kumar Chaudhary (P.W. 12). The injuries observed by him in his
post-mortem report on the deceased were as under:

"(i) incised
wound 5" x 1 =" x cranial cavity deep on the left side of the
forehead obliquely placed and extending to the right parietal region of the
scalp with obvious commuted fracture of frontal bone on the left side;

5 (ii) Abrasion 2
=" x 1 =" over front of left shoulder wrist;

(iii) Abrasion 1
=" x =" over left shoulder;

(iv) Penetrating wound
with sharp margins 1 =" x <" x 5"

deep over the right
renal area 1" away from the L2 spine (v) On dissection, the doctor had
found the cranial vault fractured and the margins and brain matter were torn,
lacerated and contused over the left asterior half extending to the right
hemisphere; The penetrating would was 5" deep and in its area had
lacerated right kidney bodily through out its breadth. It had also perforated
the peritoneum and the ascending column of the large gut and part of the small
intestine. The soft tissue and pours of the aforesaid would was lacerated.

The abdominal cavity
was filled with blood clots, faecal matter and other intestinal material.

The doctor had
further observed that an iron rod with a spear shaped head with two spikes (tenta)
was found stuck in the body which he had removed and handed over to the
constable. In the opinion of the doctor, the death occurred due to injury no.
(iv), which was caused by a sharp weapon and due to cardiac respiratory failure
on account of the internal and external hemorrhage and injury to the vital
organs like brain, kidney and intestine.

9.In
both the cases, chargesheets were filed on 31.12.1997.

The following charges
were framed against the accused under Sections 302/149, 307/149, 326/147, 148,
324 I.P.C. on 23.4.1994 by 6 Additional District & Sessions Judge, IInd
Bokaro at Chas, which read as under:

"FIRST - That
you, on or about the 31st day of October 97 at 2 pm at village Simultand P.S.
Chandankiyari, Distt. Bokaro all of you in furtherance of common object did
commit murder by intentionally or knowingly causing the death of Nagendra Nath
Das and thereby committed an offence punishable under Section 302/149 of the
Indian Penal code, and within my cognizance.

SECONDLY- That you,
on or about the same date of same time at same place all of you in furtherance
of common object did (sic) act it namely assaulted with deadly weapons with
such intention or knowledge under such circumstances, that if by that act you
had caused the death of Manpuran Das @ Puran Chandra Das and (2) Gour Das you
would have been guilty of murder and thereby committed an offence punishable
Section 307/149 of the Indian Penal Code, and within my cognizance.

THIRDLY- That you, on
or about the same date of same time at same place voluntarily caused grievous
hurt to (1) Manpuran Das @ Puran Chandra Das and (2) Gour Das by means of Tangi
which is an instrument for cutting and thereby committed an offence punishable
under Section 326 of the Indian Penal Code, and within my cognizance.

FOURTHLY- That you,
on or about the 31st day of October 1997 at 2 pm at village Simultand P.S.
Chandankiyari, Distt. Bokaro all of you were a member of unlawful assembly and
in prosecution of the common object of the said assembly committed the offence
of rioting and thereby committed an offence punishable under Section 147 of the
Indian Penal Code, and within my cognizance.

FIFTHLY - That you,
on or about the same date of same time at same place were a member of unlawful
assembly and did in prosecution of the common object of that assembly commit
the offence of rioting and at that time you were armed with a deadly weapons
namely, Tanta, Tenta (Ballam), Bhala etc. and thereby committed an offence
punishable under Section 148 of the Indian Penal Code, and within my
cognizance.

SIXTHLY- That you, on
or about the same date of same time at same place voluntarily caused hurt to
(1) Manpuran Das @ Puran Chandra Das and (2) Gour Das by means of Tangi which
is an instrument for cutting and thereby committed an offence punishable under
Section 324 of the Indian Penal code, and within my cognizance."

Indisputably, charges
were also framed against the prosecution witnesses under Sections 147/149,
323/149, and 342/149 respectively by Sub-Divisional Judicial Magistrate, Chas,
Bokaro on 12.7.1999, which read as under:

"FIRST- That
you, on or about the 31st day of October 1997 at village Simultand P.S.
Chandankiyari, Distt. Bokaro being a member of an unlawful assembly committed
rioting in the prosecution of common object of an unlawful assembly and thereby
committed an offence punishable under Section 147/149 of the Indian Penal Code,
and within my cognizance.

SECONDLY- That you,
on or about the same day of same at same voluntarily caused hurt to informant
Ravishwar Manjhi and his younger brother Jaleshwar Manjhi in the prosecution of
common object of an unlawful assembly and 8 thereby committed an offence
punishable Section 323/149 of the Indian Penal Code, and within my cognizance.

THIRDLY- That you, on
or about the same day of same at same wrongfully confined to informant and his
younger brother in the prosecution of common object of an unlawful assembly and
thereby committed an offence punishable under Section 342/149 of the Indian Penal
Code, and within my cognizance."

10.Both
the cases were taken up for hearing by different courts. It is, however, stated
that the cases lodged by the accused persons is still pending in the Court of
Judicial Magistrate, Bokaro.

P.W.11-Dr. Ratan
Kejriwal in whose Nursing Home the injured were admitted, P.W. 9 Gour Das and
Puran Chand Das were admitted, P.W. 12- 9 Dr. Avanish Kumar Choudhary, the
Autopsy Surgeon, P.W. -16 - Dr. P.S. Kashyap, who is said to have examined
Parmeshwar Das (P.W. 7), P.W.17- Shankar Ram, A.S.I. who had recorded the
fard-beyan of P.W. 10 and conducted the inquest were also examined.

The Investigating
Officer, however, was not examined.

Appellants also
examined two defence witnesses, namely, Sahdeo Mahto (D.W. 1), a police
constable for proving the fard-beyan, FIR and charge-sheet filed against the
complainant party and Dr. Virendra Kumar (D.W.2) who had examined the accused
Ravishwar Manjhi and Jaleshwar Manjhi.

12.The
learned trial judge did not place any reliance upon the evidence of P.W.7 Parmeshwar
Das, who claimed himself to be an injured eyewitness.

The learned trial
judge further did not believe the allegation of giving a `tangi' blow by
Umakant Rajak on the head of Manpuran Das. It was, however, held that Jaleshwar
Manjhi had caused grievous injury by a `sharp weapon' on the left palm of Gour
Das and Raghu Manjhi caused grievous injury on the left knee joint by a `sharp
weapon' to Manpuran Das and the accused Kala Chand Manjhi also caused grievous
injury on the left scapula of Manpuran Das by a `sharp weapon'. Accused
Jaleshwar Manjhi was 10 found to have been assaulted the deceased by giving
severe blow by `tangi' on the head causing fracture of the frontal bone and the
brain matter was torn. Ravishwar Manjhi pierced Tenta in the back of the
deceased.

On the basis of the
aforementioned finding, the accused persons were convicted and the following
sentences were imposed:

Name of accused
Convicted Sentence awarded under Section Ravishwar Manjhi 302, 148 I.P.C. Life
imprisonment and 2 years RI respectively.

13.The
High Court by reason of the impugned judgment has dismissed the appeal
preferred by the appellants herein.

14.Mr.
Abhijit Sengupta, learned counsel appearing on behalf of the appellants would
contend:

11 (i) The genesis
and origin of the occurrence has been suppressed by the prosecution.

(ii) The injuries on
the person of the accused having been denied, the prosecution witnesses must be
held to be not reliable as they suppressed material points.

(iii) Non-examination
of the Investigating Officer has caused serious prejudice to the accused.

(iv) Actual place of
occurrence, namely, whether it was in front of the house of the appellant
Jaleshwar Manjhi or in front of the house of the deceased, has not been firmly
established.

(v) The prosecution
having not sent the blood stained earth which was collected by P.W.17 for
chemical examination, the defence version must be held to have been proved.

(vi) The prosecution
witnesses should not be believed as inordinate delay was caused in obtaining
their statements.

(vii) The station
diary (Sanha) on the basis whereof P.W. 17 was said to have reached the place
of occurrence having not been produced, the appellants were seriously
prejudiced wherefor adverse inference should be drawn.

(viii) The materials
brought on record cast a serious doubt in regard to the time of recording of
the fard-beyan as investigation had 12 commenced even on the basis of the
station diary, and thus the FIR was inadmissible in evidence.

(ix) There was no
reason for the injured to obtain treatment from a private Hospital although
there was Government hospital near the place of occurrence.

(x) The courts below
in their judgments did not consider and discuss the evidence as regards the
charge of forming an unlawful assembly, and thus, the prosecution must be held
to have failed to prove that the appellants formed a common object to commit
the offence.

(xi) Statements of
the prosecution witnesses having been recorded after the medical evidence was
available to them, no reliance thereupon shall have been placed by the courts
below.

(xii) Statements of
the accused persons - appellants were not properly recorded under Section 313
of the Code of Criminal Procedure which caused a grave prejudice.

(xiii) The courts
below made out a third case which was not supported by the evidence on record
and which is impermissible in law.

13 (xiv) Wrong
description of weapons in the FIR had affected the testimonial value of the
witnesses which improbalize the prosecution case.

(xv) Both the cases
should have been tried by the same court and one after another.

(xvi) In any view of
the matter, the appellants must be held to have exercised their right of private
defence in view of the injuries sustained by them.

15.Mr.
Ratan Kumar Choudhuri, learned counsel appearing on behalf of the State of
Jharkhad, on the other hand, would contend:

(i) As P.W. 17 has
been examined by the prosecution who has recorded the FIR, non-examination of
the Investigating Officer was not of much significance.

(ii) Statements of
P.W.1, P.W. 3 and P. 7 could not have been recorded as they were admitted in
the hospital.

(iii) The injured
persons and the deceased were taken to Chas as it was found necessary that they
receive treatment in the referral hospital at Chas and the same having been
found to be closed, the injured were then admitted to the Nursing Home which
was at Chas.

(iv) The prosecution
has proved the genesis of the occurrence.

(v) The learned
Sessions Judge as also the High Court arrived at the finding of guilt of the
accused, upon proper analysis of the evidence adduced by the prosecution and in
that view of the matter the impugned judgment should not be interfered with.

(vi) Appellants had
formed a common object on the spot and in view of the nature of injuries
inflicted on the deceased as also on the injured persons, prosecution must be
held to have proved formation of the unlawful assembly.

16.The
learned Sessions Judge as also the High Court did not record any finding that
all the accused persons formed a common object.

There was no
premeditation on the part of the accused. Two of the accused have been found
guilty under Sections 302 and 148 of the Indian Penal Code and other accused
under Sections 326 and 148 thereof.

Mr. Sengupta may be
correct in his submission that the prosecution has not come out with the
genesis of the occurrence. We also do not know as to why both the cases were
not taken up by the same court one after the other. We furthermore fail to
understand as to how a criminal case of 1999 is still pending in the Court of
Judicial Magistrate, Bokaro.

17.The
learned Sessions Judge as also the High Court appeared to have proceeded on the
premise that as the appellants had not been able to prove their defence, and
therefore, the prosecution version should be accepted.

The approach of the
courts below was, thus, not correct.

The investigation was
carried out in a slipshod manner. The FIR clearly showed that even before
lodging of the FIR, investigation had started. The inquest was conducted,
bloodstained grass and soil had been seized and the dead body was sent for
post-mortem.

18.It
is beyond anybody's comprehension that if the incident had taken place at about
2'O clock and it took about one and half hours for P.W. 17 to reach the village
Simultand, how the FIR was recorded at about 3.45 p.m. while the inquest report
was prepared at about 4.05 p.m. and blood stained grass and soil was seized at
about 5.00 p.m. The injured persons received grievous injuries. It was expected
that they would be rendered some medical help at the earliest. They were
unconscious and, thus, they should have been sent for treatment to a nearby
hospital. It was absolutely necessary that at least some medical help is
rendered to them.

They reached Dr.
Kejriwal's Nursing Home at about 7.00 p.m. The following injuries were noticed
by P.W.11, in his own words:

3. Incised wound
(illegible) left knee joint 8 cm x 10 cm. age within 6 hrs. Number one caused
hard blunt object and another by sharp instrument. All the injuries are
grievous the two injuries re in pen and signature Exh.4 and 4A.

In response to all
the relevant questions, his standard answer was "I do not remember".

19.If
the prosecution case is correct that the dead body as also the injured persons
were brought to the referral hospital, the same having been found to be closed,
the injured were admitted in the Nursing Home, there was no reason as to why a
police personnel did not accompany them. It is also strange that neither the
exact location of injury on the head of the Puran Das 17 was stated nor
description of the said injury had been furnished by the Doctor. He was also
not in a position to say whether injury No. 3 was from the front or behind.
According to him all injuries could be caused by similar weapons. He, in his
injury report, even did not mention the colour of injury.

20.Whereas
all the other prosecution witnesses were admitted in the hospital on the same
day, P.W. 7 is said to have been admitted on the next day although he had
suffered a grievous injury. It is not known whether he had been given any
medical aid or not. Statement of none of the witnesses was recorded either on
the day on which the occurrence had taken place or the day after.

21.P.W.
1 was examined after the `Shradh Ceremony' of deceased was over which would be
about twelve days after the death. P.W. 3 stated that he was examined after one
month. Statement of P.W. 7 was also taken after he was discharged from
hospital, i.e., at least after a week.

The Investigating
Officer in a case of this nature should have been examined. His examination by
the prosecution was necessary to show that there had been a fair investigation.
Unfortunately, even no site plan was prepared. There is nothing on record to
show as to the exact place where 18 the occurrence had taken place. It is
stated that the house of the parties is divided by a road. If that be so, it
was all the more necessary to pin point the exact place of occurrence to
ascertain who was the aggressor.

22.No
doubt, a life is lost and two persons suffered grievous injuries but we must
also notice the injuries suffered by two of the appellants as was disclosed by
Dr. Virendra Kumar (D.W. 2) in his evidence.

"On 31.10.1997 I
was posted at M.O. at Chandankiyari. On that day at 9.30 p.m. I examined
Ravishwar Manjhi s/o Berga Manjhi P.S.Chandankiyari, District Bokaro and found
following injuries:

19 The patient
Ravishwar Manjhi was referred for X- ray and on receipt of the report both
injuries on palm were found to be grievous.

23.The
injuries being grievous in nature, the prosecution owed a duty to explain the
same.

It is unfortunate
that the High Court did not take serious notice of the nature of injuries
suffered by the appellants, relying on the decision of this Court in Ayodhya
Ram alias Ayodhya Prasad Singh and Ors. vs. State of Bihar [(1999) 9 SCC 139],
wherein only minor injuries were suffered by the accused persons.

24.Out
of seven eyewitnesses, P.W. 7 was not believed by the courts below. P.Ws. 4 and
5 were not present exactly at the place of occurrence.

They are said to have
witnessed only a part of the occurrence. All other eyewitnesses were related to
the deceased. However, we do not hesitate to add that only on that ground their
evidences should not be disbelieved.

Furthermore, there
was no enmity between the parties. Only a case under Section 107 of the Code of
Criminal Procedure was pending against them. Even in respect thereof, no
documentary evidence was brought on record to show as to when the said
proceeding was initiated and at whose instance. The prosecution witnesses
merely supported the prosecution case 20 that a death had taken place and two
witnesses suffered grievous injuries but it was absolutely necessary in the
facts and circumstances of this case to show that the accused were the
aggressors. It was for that reason the genesis of the prosecution case must be
held to have grave significance.

25.The
very fact that the appellants had gone back to their house to come out with
arms and caused injuries on the person of the deceased and injured persons may
or may not be correct, but even accepting the prosecution case to be correct,
evidently the prosecution party also went to their house and brought weapons
from their house. If it is accepted that the appellants were armed with such
deadly weapons, it must also be accepted that the prosecution witnesses would
also be armed with such weapons. It is, inter alia, for this reason the
production of `Sanha' entry was necessary. We are not oblivious of the fact
that a mere information received on phone by a Police Officer without any
details as regards the identity of the accused or the nature of injuries caused
by the victims as well as the name of the culprits may not be treated as FIR,
but had the same been produced, the nature of information received by the
police officer would have been clear.

It is interesting to
note that the High Court in its judgment recorded the following:

"The explanation
given by the prosecution witnesses that they could not notice the injuries, if
21 any, on the person of the above named appellants on account of the fact that
they themselves had sustained injuries and one of their own having sustained
fatal injuries had died at the spot and the assault continued hardly for less
than five minutes whereafter the assailants had fled away, appears to be a
reasonable explanation as far as the injured witnesses are concerned. This,
however, does not apply to the other eye witnesses, since they had an
opportunity to see the entire occurrence from the beginning to end. From the
evidence adduced by the prosecution and that by the defence, it appears that
both sides had indulged in a free fight with each other in course of which,
members of both the parties had sustained injuries. In the FIR of the counter
case instituted by the appellant Ravishwar Manjhi, a feeble attempt to explain
the injuries found on the person of the members of the prosecution party has
been made. It is contended that it was in exercise of right of private defence
by the appellants while resisting the advances made by the deceased that some
injuries may have been caused to the deceased and other members of his
family."

26.If
there was a free fight which might have taken place and where both the parties
were armed with deadly weapons and suffered injuries, all the appellants could
not have been convicted under Section 302 of the Indian Penal Code. The entire
case should have been viewed by the courts below from that angle. The case was
required to be considered in the light of the defence case. The High Court
opined that the deceased was accosted by the appellant not in their house, but
outside their house on the road is not a matter of moment, particularly when
the High Court itself recorded that 22 house of the deceased Nagender Nath Das
and that of the appellant Ravishwar Manjhi were opposite to each other with a
road (alley) dividing the same. If the dead body was lying on the alley, it
matters little as to whether it was in front of the house of the appellant or
the deceased.

27.The
plea of the appellants as regards exercise of the right of private defence has
been negatived by the High Court only on the ground that the right to private
defence had ceased immediately after the deceased had retreated from their
house. But what has not been considered is the causa causan of the incident.

Whether the outraging
of modesty of a female member of the family of the accused was the reason giving
rise to the occurrence is a question which should have been considered. If that
be so, it was for the prosecution to prove that attempt on the part of the
appellants to cause injuries was not as a result of previous enmity but for a
different purpose.

If the allegations
made in the FIR that the appellants were drunk was correct, it was obligatory
on the part of the P.W. 17 and consequently the Investigating Officer to get
the said fact established. Medical evidence does not suggest the same. This aspect
of the matter was not brought to the notice of the Doctor treating the accused.
There were, thus, two versions. Both 23 were probable and if that be so, the
plea of exercise of right of private defence raised by the appellant deserved
serious consideration.

28.There
was no material brought on records to show that the appellants were the
aggressors. If everything had happened within a short span of time as is
alleged by the prosecution, namely, the appellants were causing nuisance which
was objected to by the deceased; they went to their respective houses; came
armed and started assaulting the deceased and other injured persons, it was
also necessary for the prosecution to prove as to how accused persons received
injuries. It is now a well settled principle of law that the accused can show
that they were entitled to exercise right of private defence from the materials
on records brought by the prosecution.

29.The
places where the injuries had been inflicted also assume significance. If the
prosecution witnesses are to be believed, the first injury was caused on hand.
It was thereafter injuries were caused on other parts of the person of the
prosecution witnesses and the last injury was caused by `tenta'.

24 "It is true
that the defence case also has not been accepted by the High Court but once
there is a probability of the accused having acted in self- defence, that is
sufficient to entitle him to an acquittal."

In Bishna Alias
Bhiswadeb Mahato & ors. vs. State of W.B. [(2005) 12 SCC 657], this Court
noticed that a right of private defence need not specifically be taken and in
the event the court on the basis of the materials placed on record is in a
position to come to such a conclusion, the court may act thereupon. It was
held:

"74. 'Right of
private defence' is not defined.

Nothing is an offence
in terms of Section 96 of the Indian Penal Code, if it is done in exercise of
the right of private defence. Section 97 deals with the subject matter of
private defence. The plea of right of private defence comprises the body or
property.

It, however, extends
not only to person exercising the right; but to any other person. The right may
be exercised in the case of any offence against the body and in the case of
offences of theft, robbery, mischief or criminal trespass and attempts at such
offences in relation to property. Sections 96 and 98 confer a right of private
defence against certain offences and acts. Section 99 lays down the limit therefor.
The right conferred upon a person in terms of Section 96 to 98 and 100 to 106
is controlled by Section 99. In terms of Section 99 of the Indian Penal Code,
the right of private defence, in no case, extends to inflicting of more harm
than it is necessary to inflict for the purpose of defence. Section 100
provides that the right of private defence of the body extends under the
restrictions mentioned in the last preceding section to the voluntary causing
of death or of any other 25 harm to the assailant if the offence which
occasions the exercise of the right be of any of the descriptions enumerated
therein, namely, "First - Such an assault, as may reasonably cause the
apprehension that death will otherwise be the consequence of such assault; Secondly
- Such an assault as may reasonably cause the apprehension that grievous hurt
will otherwise be the consequence of such assault". To claim a right of
private defence extending to voluntary causing of death, the accused must show
that there were circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be caused to him. The
burden in this behalf is on the accused."

"26. We are not
unmindful of the fact that in all circumstances injuries on the person of the
accused need not be explained but a different standard would be applied in a
case where a specific plea of right of private defence has been raised. It may
be true that in the event prosecution discharges its primary burden of proof,
the onus would shift on the accused but the same would not mean that the burden
can be discharged only by examining defence witnesses.

27. The learned
courts below committed a manifest error of law in opining that the Appellants
had not discharged the initial burden which is cast on them. Even such a plea
need not be specifically raised. The Courts may only see as to whether the plea
of exercise of private defence was probable in the facts and circumstances of
the case.

32. In regard to the
duty of the prosecution to explain the injuries on the part of the accused,
this Court observed:

`78. Section 105 of
the Evidence Act casts the burden of proof on the accused who sets up the plea
of self- defence and in the absence of proof, it may not be possible for the
court to presume the correctness or otherwise of the said plea. No positive
evidence although is required to be adduced by the accused; it is possible for
him to prove the said fact by eliciting the necessary materials from the
witnesses examined by the prosecution. He can establish his plea also from the
attending circumstances, as may transpire from the evidence led by the
prosecution itself.

79. In a large number
of cases, this Court, however, has laid down the law that a person who is
apprehending death or bodily injury cannot weigh in golden scales on the spur
of the moment and in the heat of circumstances, the number of injuries required
to disarm the assailants who were armed with weapons. In moments of excitement
and disturbed equilibrium it is often difficult to expect the parties to
preserve composure and use exactly only so much force in retaliation
commensurate with the danger apprehended to him where assault is imminent by use
of force. All circumstances are required to be viewed with pragmatism and any
hypertechnical approach should be avoided.

80. To put it simply,
if a defence is made out, the accused is entitled to be acquitted and if not he
will be convicted of murder. But in case of use of excessive force, he would be
convicted under Section 304 IPC."

"14. As noted in
Butta Singh v. The State of Punjab (AIR 1991 SC 1316), a person who is
apprehending death or bodily injury cannot weigh in golden scales in the spur
of moment and in the heat of circumstances, the number of injuries required to
disarm the assailants who were armed with weapons. In moments of excitement and
disturbed mental equilibrium it is often difficult to expect the parties to
preserve composure and use exactly only so much force in retaliation
commensurate with the danger apprehended to him where assault is imminent by
use of force, it would be lawful to repel the force in self-defence and the
right of private defence commences, as soon as the threat becomes so imminent.
Such situations have to be pragmatically viewed and not with high-powered
spectacles or microscopes to detect slight or even marginal overstepping. Due
weightage has to be given to, and hyper technical approach has to be avoided in
considering what happens on the spur of the moment on the spot and keeping in
view normal human reaction and conduct, where self-preservation is the
paramount consideration. But, if the fact situation shows that in the guise of
self-preservation, what really has been done is to assault the original
aggressor, even after the cause of reasonable apprehension has disappeared, the
plea of right of private-defence can legitimately be negatived. The Court
dealing with the plea has to weigh the material to conclude 28 whether the
plea is acceptable. It is essentially, as noted above, a finding of fact."

32.We
may notice that the learned Sessions Judge, while examining Jaleshwar Manjhi,
did not put any question to him as to whether he had killed the deceased or
assaulted anybody.

33.For
the reasons aforementioned, we are of the opinion, that it is possible for the
court to arrive at the conclusion that the appellants were entitled to exercise
their right of private defence. The appeal is allowed.

Ravishwar Manjhi
(accused No. 5), Jaleshwar Manjhi (accused No. 6) and Kala Chandra Manjhi
(acused No.3) who are in custody are directed to be set at liberty and released
forthwith unless wanted in connection with any other case.